Withholding of Removal

Date of Information: 01/30/2025

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Charles International Law recommends you review this research guide in conjunction with the research guide on the Legal Standards for Asylum in the United States.

What is Withholding of Removal?

What if an individual is ineligible for asylum in the United States under INA Section 208, but it is nearly certain they will be tortured or killed if they are deported to their home country? Are they doomed? Fortunately, no. An alternative to asylum—generally reserved for the hardest of cases—is “withholding of removal.”

Withholding of removal is not the equivalent of asylum. Withholding of removal is a situation that usually applies to proceedings in which an alien in removal proceedings has tried and failed to prove his or her eligibility for asylum in immigration court. In fact, during withholding of removal, the immigration judge will actually issue a removal order. However, the judge will simultaneously issue an order stating that the removal order cannot be executed.

Why the contradiction?: the principle of nonrefoulment. See the research guide on International Standards Underlying U.S. Asylum Law. As an expression of its national character, asylum law in the United States is more generous than is strictly required under the 1951 U.N. Convention Relating to the Status of Refugees and its 1967 Protocol. Asylum in the United States gives the asylee a pathway to citizenship and the right to petition for reunification with his or her closest relatives on U.S. soil. That is why the Refugee Act of 1980, codified at INA § 208 (8 U.S.C. § 1158), can impose exceptions to eligibility for asylum. See the research guide to Legal Standards for Asylum in the United States.

However, if a person is ineligible for asylum and the benefits that come with it, the United States is still bound by the principle of nonrefoulment in the event the person is likely to face persecution in his country of origin. See Article 33 of the 1967 Protocol. In that way, withholding of removal is like a safety net under a trapeze artist: it’s not supposed to be part of the show, but it is there just in case it is necessary to prevent a disaster.

The Legal Basis for Withholding of Removal

Again, the fundamental principle underlying withholding of removal is the principle of nonrefoulment. That principle is codified in U.S. law in INA § 241(b)(3)(A) (8 U.S.C. § 1231(b)(3)(A)) which states that “the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.” The alien has the burden of proving that his or her life or freedom would be threatened by removal. See INA § 241(b)(3)(C) (8 U.S.C. § 1231(b)(3)(C)). Much like in an asylum claim, it is not sufficient that the applicant has suffered persecution; it must be persecution based on race, religion, nationality, membership in a particular social group, or political opinion.

Withholding of Removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Another legal basis for withholding of removal is the 1984 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter “Torture Convention”). Congress implemented the Torture Convention by passing Section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998. The regulations guiding the enforcement of the Torture Convention are codified with the regulations outlining the other forms of withholding of removal. See the research guide on the U.N. Convention Against Torture for more details. The U.S. Senate ratified the Torture Convention in 1988. As a practical matter, the standards for withholding removal under the Torture Convention are the same as the standards for withholding removal under INA § 241(b)(3)(A) (8 U.S.C. § 1231(b)(3)(A)) because torture constitutes a threat to a person’s “life or freedom.”

The Standards for Withholding of Removal

INA § 241 only outlines the standards for withholding of removal in the broadest possible terms: a “demonstrat[ion] that the alien's life or freedom would be threatened.” See INA § 241(b)(3)(C) (8 U.S.C. § 1231(b)(3)(C)). More discrete standards are outlined in 8 C.F.R. § 208.16, applicable to the Department of Homeland Security, and 8 C.F.R. § 1208.16, applicable to the Immigration Courts within the U.S. Department of Justice. Although drafted slight differently, both sets of regulations outline the same standards for granting withholding of removal.

An immigration court judge or USCIS asylum officer must consider the following factors in determining whether to grant withholding of removal:

  1. Whether the alien has endured past threats to his life or freedom. Much like in an asylum claim, a past threat of persecution entitles the alien to a presumption of future threats of persecution.

  2. Whether the alien is likely to suffer future persecution; and

  3. Whether the alien can reasonably find safehaven within his own country by relocating.

Quantum of Proof Required for Withholding of Removal

Much like in asylum cases—and most cases of withholding removal start as asylum cases—an applicant is entitled to a presumption of future persecution if he or she can prove that they were persecuted in the past. See 8 C.F.R. §§ 208.16(b)(1)(i), 1208.16(b)(1)(i).

If the applicant cannot prove past persecution, he or she is still entitled to withholding of removal if they can demonstrate that they are “more likely than not” to suffer persecution based on one of the five enumerated grounds. See 8 C.F.R. §§ 208.16(b)(2), 1208.16(b)(2). Notably, this is supposed to be a higher standard of proof than that required for asylum, which only requires a “well-founded fear” of persecution. “More likely than not” ends up being roughly equivalent to the more common “preponderance of the evidence” standard, i.e. 51% or more in terms of probability. The U.S. Supreme Court has intimated that a probability of persecution as low as 10% is sufficient to establish a “well-founded fear.” See I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987).

Disqualifiers for Withholding of Removal

Nations are not required to obey the principle of nonrefoulment if, “there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” Article 33(2) of the 1967 Protocol. In accordance with that standard, the United States put some limits on the availability of withholding of removal as a remedy. See INA § 241(b)(3)(B) (8 U.S.C. § 1231(b)(3)(B))

The following are the statutory conditions under which the United States will not grant withholding of removal due to the dangerousness of the applicant to the country or the community:

  • “[T]he alien ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual's race, religion, nationality, membership in a particular social group, or political opinion[.]” INA § 241(b)(3)(B)(i) (8 U.S.C. § 1231(b)(3)(B)(i));

  • “[T]he alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States[.]” INA § 241(b)(3)(B)(ii) (8 U.S.C. § 1231(b)(3)(B)(ii));

  • “[T]here are serious reasons to believe that the alien committed a serious nonpolitical crime outside the United States before the alien arrived in the United States[.]” INA § 241(b)(3)(B)(iii) (8 U.S.C. § 1231(b)(3)(B)(iii)); or

  • “[T]here are reasonable grounds to believe that the alien is a danger to the security of the United States[.]”

What specific conduct falls into those categories disqualifying an alien from withholding of removal will be the topic of a future research guide.

Distinctions from Asylum

Again, withholding of removal is a form of relief that is generally requested in conjunction with asylum. It fulfills some of the same obligations that U.S. asylum law fulfills in terms of international obligations on the United States. Yet there some marked distinctions in the standards and processes by which withholding of removal is granted should an alien fail in his or her asylum application or be ineligible for asylum at the outset. The following is provided as a quick reference to the similarities and distinctions between asylum and withholding of removal a legal remedies:

Other Helpful Resources:

See Also:

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